Methods of Ethics

Henry Sidgwick

Book III

Chapter VI


§2. Let us begin by considering the Ideal. Here I do not propose to consider all views as to the right constitution of supreme authority which speculative thinkers have put forward; but only such as have a prima facie claim to express the Common Sense of mankind on the subject. Of these the most important, and the most widely urged and admitted, is the principle that the Sovereign in any community can only be rightly constituted by the Consent of the Subjects. This, as was noticed in the preceding chapter, is involved in the adoption of Freedom as the ultimate end of political order: if no one originally owes anything to another except noninterference, he clearly ought only to be placed in the relation of Subject to Sovereign by his own consent. And thus, in order to reconcile the original right of Freedom with the actual duty of Law-observance, some supposition of a social compact appears necessary; by means of which Obedience to Law becomes merely a special application of the duty of keeping compacts.

In what way, then, are the terms of this fundamental compact to be known? No one now maintains the old view that the transition from the `natural' to the `political' state actually took place by means of an ``original contract'', which conferred indelible legitimacy on some particular form of social organisation. Shall we say, then, that a man by remaining a member of a community enters into a `tacit undertaking' to obey the laws and other commands imposed by the authority generally recognised as lawful in that community? In this way however the Ideal lapses into the Customary: and the most unlimited despotism, if established and traditional, might claim to rest on free consent as well as any other form of government: so that the principle of abstract Freedom would lead to the justification of the most unqualified concrete tyranny and servitude; and thus our theory would end by riveting men's chains under pretence of exalting their freedom. If to avoid this result, we suppose that certain `Natural Rights' are inalienable---or tacitly reserved in the tacit compact and that laws are not strictly legitimate which deprive a man of these, we are again met by the difficulty of deducing these inalienable rights from any clear and generally accepted principles. For instance, as we have seen, a widely accepted opinion is that all such rights may be summed up in the notion of Freedom; but we have also seen that this principle is ambiguous, and especially that the right of private property as commonly recognised cannot be clearly deduced from it; and if so it would certainly be most paradoxical to maintain that no government can legitimately claim obedience for any commands except such as carry out the principle of protecting from interference the Freedom of the individuals governed. It has been thought that we can avoid this difficulty by constituting the supreme organ of government so that any law laid down by it will always be a law to which every person called on to obey it will have consented personally or by his representatives: and that a government so constituted, in which---to adopt Rousseau's phrase---every one ``obeys himself alone'', will completely reconcile freedom and order. But how is this result to be attained? Rousseau held that it could be attained by pure direct democracy, each individual subordinating his private will to the ``general will'' of the sovereign people of which all are equally members. But this ``general will'' must be practically the will of the majority: and it is paradoxical to affirm that the freedom and natural rights of a dissentient minority are effectively protected by establishing the condition that the oppressors must exceed the oppressed in number. Again, if the principle be absolute it ought to apply to all human beings alike: and if to avoid this absurdity we exclude children, an arbitrary line has to be drawn: and the exclusion of women, which even those who regard the suffrage as a natural right are often disposed to maintain, seems altogether indefensible. And to suppose---as some have done---that the ideal of ``obeying oneself alone'' can be even approximately realised by Representative Democracy, is even more patently absurd. For a Representative assembly is normally chosen only by a part of the nation, and each law is approved only by a part of the assembly: and it would be ridiculous to say that a man has assented to a law passed by a mere majority of an assembly against one member of which he has voted.

But, again, to lay down absolutely that the laws of any community ought to express the will of the majority of its members seems incompatible with the view so vigorously maintained by Socrates and his most famous disciples, that laws ought to be made by people who understand law-making. For though the majority of a representative assembly in a particular country at a particular time may be more fit to make laws for their country than any set of experts otherwise selected, it is certainly not self-evident that this will be universally the case. Yet surely the Socratic proposition (which is merely a special application of the principle noticed in the latter part of the preceding chapter, `that function should be allotted to the fittest') has as much claim to be considered a primary intuition as the one that we have been discussing. Indeed, the secular controversy between Aristocracy and Democracy seems ultimately reducible to a conflict between those two principles: a conflict of which it is impossible to find a solution, so long as the argument remains in the a priori region.

[ME, Laws and Promises, §1]
[ME, Laws and Promises, §3]